NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13860
SUNPIN ENERGY SERVICES, LLC, & another1 vs.
ZONING BOARD OF APPEALS OF PETERSHAM.
Suffolk. April 8, 2026. - July 14, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
& Wolohojian, JJ.
Renewable Energy. Public Utilities, Energy company, Electric
company. Electric Company. Electricity. Zoning, Special
permit, Permitted use, By-law, Board of appeals: decision.
Municipal Corporations, By-laws and ordinances. Practice,
Civil, Summary judgment.
Civil action commenced in the Land Court Department on December 17, 2021.
The case was heard by Jennifer S.D. Roberts, J., on motions for summary judgment.
After review by the Appeals Court, 105 Mass. App. Ct. 641 (2025), the Supreme Judicial Court granted leave to obtain further appellate review.
James F. Martin (Jonathan S. Klavens also present) for the plaintiffs.
Michael E. Shamgochian (David J. Doneski also present) for the defendant.
The following submitted briefs for amici curiae:
1 Ralph P. Lapinkas, Jr.
2
Thaddeus Heuer & Zachary Gerson for Solar Energy Industries Association & another.
Margaret E. Sheehan for Community Land and Water Coalition, Inc., & others.
Andrea Joy Campbell, Attorney General, & Seth Schofield, Assistant Attorney General, for the Attorney General.
Kate Moran Carter, Kathleen M. Heyer, & Nicholas P. Shapiro for Real Estate Bar Association for Massachusetts, Inc., & another.
KAFKER, J. The plaintiffs, Sunpin Energy Services, LLC
(Sunpin), and Ralph P. Lapinkas, Jr., seek to build a largescale ground-mounted solar energy system in the town of
Petersham (town), a rural town that is ninety-seven percent
forested. Based on the location of the project and pursuant to
the town's zoning bylaw (bylaw), Sunpin applied for a special
permit from the zoning board of appeals (board), the town's
special permit granting authority. One of three board members
voted to deny the application primarily because the project
would require significant tree cutting, contrary to her
interpretation of the bylaw's intent and purpose. Because the
vote was not unanimous as required by G. L. c. 40A, § 9, twelfth
par., the application was denied.
The plaintiffs then challenged that decision by commencing
this action in the Land Court, and a judge granted summary
judgment in favor of the board's denial of the permit. The
plaintiffs then appealed to the Appeals Court, which vacated the
judgment on the ground that the board's decision was arbitrary
3
and capricious. We granted the board's application for further
appellate review.
We conclude that, in accordance with the Dover Amendment's
solar provision, G. L. c. 40A, § 3, ninth par. (paragraph nine),
a town must provide reasonable opportunities to build solar
energy systems and may not deny a special permit for such a
project unless doing so is necessary to protect public health,
safety, or welfare. This requires individualized and sitespecific reasons for denying a special permit application.
Where, as here, the town is ninety-seven percent forested and
the application was denied primarily because of generally
applicable concerns about tree cutting, such a denial is
effectively a blanket prohibition on large-scale ground-mounted
solar energy systems in the town. Because sylvan as well as
urban communities must provide reasonable opportunities for
solar energy facilities and because this blanket prohibition is
not necessary to protect public health, safety, or welfare, the
denial of the special permit was improper under paragraph nine.
Accordingly, we vacate the judgment of the Land Court and remand
the matter to that court for entry of an order remanding the
matter to the board for further proceedings consistent with this
opinion.2
2 We acknowledge the amicus briefs submitted by the Solar Energy Industries Association and Alliance for Climate
4
1. Background. a. Facts. The following facts are
undisputed. The town is ninety-seven percent forested and is
entirely zoned as residential-agricultural. The town has
established a solar electric overlay district (SEOD), in which
"large-scale ground-mounted solar electric installation[s]
(greater than 10 [kilowatts])" can be constructed as of right.
The SEOD is a single town-owned parcel of land spanning 5.16
acres. Any large-scale ground-mounted solar electric
installations outside the SEOD require a "special permit," which
is governed by §§ 11.2 and 18 of the town's bylaw.
The proposed site of the project in this case is on
property located outside of the SEOD. On March 30, 2021, Sunpin
prepared an application for a special permit and site plan
review for the project. The site is on land owned by Lapinkas
and consists of undeveloped forests and wetlands. There are
five direct abutters to the property, including privately owned
undeveloped land, two residential lots, and the Riceville Pond
Transition; Community Land and Water Coalition, Inc., the Wareham Land Trust, Save Massachusetts Forests, RESTORE: The North Woods, Trees as a Public Good, Carver (MA) Concerned Citizens, Climate Action Now Western MA, Concerned Citizens of Franklin County, and East Quabbin Land Trust, Inc.; and Real Estate Bar Association for Massachusetts, Inc., and the Abstract Club. We further acknowledge the amicus letter submitted by the Commonwealth.
5
site of the Harvard Forest.3 The Harvard Forest is comprised of
4,000 acres of land, research facilities, and a museum, and,
since 1988, has been "a Long-Term Ecological Research Site,
funded by the National Science Foundation to conduct integrated,
long-term studies of forest dynamics." Harvard Forest, About
Us, https://harvardforest.fas.harvard.edu/about/about-us
[https://perma.cc/F8KF-2PAW]. Public access to the Riceville
Pond site is allowed for recreation, including hiking, dogwalking, fishing, hunting, bird and other wildlife watching, and
nature study. The proposed project location also has frontage
along a public way, New Athol Road.
The project is a 4.3-megawatt (direct current) photovoltaic
generation and 2.0-megawatt energy storage system and requires
the construction of a ground-mounted solar array and battery
racks. The entire solar array will be enclosed with a sevenfoot-high chain link fence and a locking gate. The property
consists of approximately twenty-four acres, and the majority of
the site is wooded. Trees that shade the 14.3-acre portion of
the property where the array will be located -- the equivalent
of approximately eleven football fields -- will be cleared in
order to maximize the energy output of the system. Sunpin
obtained an order of conditions from the town conservation
3 The Harvard Forest is a department of the Faculty of Arts and Sciences of Harvard University.
6
commission under the Wetlands Protection Act, G. L. c. 131,
§ 40, allowing the project to proceed.
A public hearing on Sunpin's special permit application and
site plan was held on several days from June to September 2021
before the board. At the close of the hearing, and after
deliberation by the board, two board members voted to approve
the application and one voted not to approve the application.
Because G. L. c. 40A, § 9, twelfth par., requires a unanimous
vote of a three-member board to grant a special permit, Sunpin's
application was denied.
The dissenting board member, Maryanne Reynolds, submitted a
twenty-six-page statement of reasons setting forth her findings
and the reasons for her vote. Reynolds explained that although
Sunpin satisfied the specific requirements for large-scale solar
installations outlined in § 18 of the bylaw, § 18 also requires
obtaining a special permit pursuant to § 11.2 for such projects.
Approval of a special permit requires findings that (1) "the use
involved will not cause or give rise to noise, odor, refuse,
exterior lighting, traffic or other considerations which would
be offensive or detrimental to the present or future character
of the neighborhood or the community"; and (2) "the proposed use
will not derogate from the intent and purpose of this By-law."
Section 1 of the bylaw states that this intent and purpose "is
to promote the health, safety and general welfare of the
7
inhabitants of [the town]; to lessen the danger from fire; to
maintain the beauty of [the town]; to secure the proper growth
of [the town] by encouraging the most appropriate use of land
and buildings; and to stabilize the value of property."
In Reynolds's view, although the project could satisfy
several of these requirements with appropriate conditions,
granting the special permit would still be improper, primarily
because of the significant tree cutting it would require.4
Referencing guidance published by State executive agencies,
Reynolds noted that the contemplated deforestation thwarts the
Commonwealth's energy policy goals because forests provide water
management, cooling and climate benefits, habitats for wildlife,
recreational opportunities, and carbon storage. Reynolds
further opined that granting the special permit here would be
inconsistent with the town's master plan, as it would facilitate
"the usual, unfortunate trajectory" in which "natural lands are
fragmented and punctuated with houses and businesses, then, as
additional waves of development occur, built areas are joined
together and filled in until the remaining natural lands have
been fragmented into small, isolated pieces with greatly reduced
4 Reynolds also discussed other reasons for her vote, including that the commercial project is out of character with the residential area, a fire could release chemicals from the solar panels, and the project would have a negative effect on property values.
8
environmental value." Finally, Reynolds observed that it is
"unclear" whether the board would approve a special permit for
any future large-scale project outside the SEOD, explaining:
"If all future proposed projects are similar to the present
one (substantial destruction of natural resources without
clear community benefits), then the answer is no, but there
is always the possibility of an approvable project. . . .
It is foreseeable that solar panel array technology will
evolve . . . in ways we cannot yet conceive. For now, it
is the [b]oard's responsibility to adhere to the
requirements of the By-laws and to trust that we will know
an approvable project when it comes before us."
In sum, Reynolds concluded that the project "will derogate from
the intent and the purpose of the By-laws" because it "would
cause the destruction of forest on New Athol Road and replace it
with an industrial compound not suited to the residential
character of the neighborhood," and thus it "is neither
essential nor desirable to the public welfare to grant a special
permit."
b. Procedural history. On December 17, 2021, the
plaintiffs filed a complaint in the Land Court to annul the
board's decision, alleging that the board acted in an
unreasonable, whimsical, arbitrary, or capricious manner when it
denied the application for a special permit. On the parties'
cross motions for summary judgment, the Land Court judge granted
summary judgment in favor of the board, reasoning that Reynolds
properly applied the criteria and standards articulated in the
bylaw to the facts before the board. See Sunpin Energy Servs.,
9
LLC vs. O'Neil, Mass. Land Ct., No. 21 MISC 000626, slip op. at
13 (Aug. 8, 2023). In her written decision, the Land Court
judge noted that "[§] 1 of the [bylaw, on which Reynolds
relied,] describes its purpose as being, in part, 'to promote
the health, safety and general welfare of the inhabitants of
[the town],' and . . . G. L. c. 40A, § 9, ninth [par.], allows
regulation of solar energy systems 'to protect the public
health, safety or welfare.'" Id. at 10-11. The Land Court
judge emphasized that Reynolds more broadly "challenged the
siting of [Sunpin's project] on property that would require
cutting a significant number of trees, because 'maintaining
trees assists the Commonwealth's energy policy goals because of
the important water management, cooling and climate benefits
trees provide." Id. at 12.
The plaintiffs appealed from the Land Court judge's
decision to the Appeals Court. On July 9, 2025, in a published
opinion, the Appeals Court vacated the judgment, reasoning that
the board's special permit decision was an abuse of discretion
and arbitrary and capricious because it was based on an improper
preference for forest preservation over solar energy siting, as
well as conjecture about future development in the town. See
Sunpin Energy Servs., LLC, 105 Mass. App. Ct. at 648.
We granted the board's application for further appellate
review.
10
2. Discussion. a. Standard of review. At issue here is
whether the board's decision constitutes an unreasonable
regulation of the installation of solar energy systems. As we
have explained, a trial judge reviewing the decision of a zoning
board of appeals "makes [her] own findings of facts and need not
give weight to those the board has found." Shirley Wayside Ltd.
Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474
(2012). See G. L. c. 40A, § 17; Pendergast v. Board of Appeals
of Barnstable, 331 Mass. 555, 558-559 (2012). "The judge then
'determines the content and meaning of statutes and by-laws and
. . . decides whether the board has chosen from those sources
the proper criteria and standards to use in deciding to grant or
to deny the . . . special permit application.'" Shirley Wayside
Ltd. Partnership, supra, quoting Britton v. Zoning Bd. of
Appeals of Gloucester, 59 Mass. App. Ct. 68, 73-74 (2003).
"After determining the facts and clarifying the appropriate
legal standards, the judge determines whether the board has
applied those standards in an 'unreasonable, whimsical,
capricious or arbitrary' manner." Shirley Wayside Ltd.
Partnership, supra at 475, quoting Wendy's Old Fashioned
Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454
Mass. 374, 382 (2009) (Wendy's).
Here, the Land Court judge granted the town's motion for
summary judgment. "We review a decision on a motion for summary
11
judgment de novo and, thus, accord no deference to the decision
of the motion judge" (quotation and citation omitted). Tracer
Lane II Realty, LLC v. Waltham, 489 Mass. 775, 778 (2022)
(Tracer Lane). The facts as referenced by the Land Court judge
are undisputed.
b. The requirement of a unanimous decision of the board.
We begin by noting that, as explained supra, Sunpin's
application could only be granted by a unanimous vote of the
board's three members. See G. L. c. 40A, § 9, twelfth par.
Here, two board members voted in favor of granting Sunpin's
application and one member, Reynolds, voted against it, which
meant the application was denied. Because of the unanimity
requirement, only Reynolds's findings and reasoning had any
practical effect on the outcome of the application. Therefore,
Reynolds's statement of reasons is the decision of the board for
purposes of this appeal and "the point of departure for the
court's review." Britton, 59 Mass. App. Ct. at 72.
c. Statutory and regulatory background. General Laws
c. 40A, § 3, portions of which are often referred to as the
Dover Amendment, "represents a specific exception to the general
power of municipalities to adopt and enforce zoning regulations
and by-laws." Regis College v. Weston, 462 Mass. 280, 289
(2012). The amendment "was originally enacted to prevent
municipalities from restricting educational and religious uses
12
of land, but the Legislature has expanded the statute over time
to ensure that other land uses would be free from local
interference" (quotation, citation, and alteration omitted).
Tracer Lane, 489 Mass. at 778-779. One such protected use is
solar energy generation.
Paragraph nine of the Dover Amendment states that "[n]o
zoning ordinance or by-law shall prohibit or unreasonably
regulate the installation of solar energy systems or the
building of structures that facilitate the collection of solar
energy, except where necessary to protect the public health,
safety or welfare." G. L. c. 40A, § 3, ninth par. This
paragraph is intended "to help promote solar energy generation
throughout the Commonwealth." Tracer Lane, 489 Mass. at 779.
As we explained in Tracer Lane, "[t]hat statutory language
provides municipalities with more flexibility than statutory
protections for land use for education, religion, and child
care, which allow only for reasonable regulations on such
matters as bulk and height." Id. at 780, citing G. L. c. 40A,
§ 3, second par. ("No zoning ordinance or by-law shall . . .
prohibit, regulate or restrict the use of land or structures for
religious purposes or for educational purposes . . . ; provided,
however, that such land or structures may be subject to
reasonable regulations concerning the bulk and height of
13
structures and determining yard sizes, lot area, setbacks, open
space, parking and building coverage requirements").
Also, in contrast to other uses protected by the Dover
Amendment, paragraph nine does not expressly preclude a special
permit requirement. Contrast G. L. c. 40A, § 3, first par. ("No
zoning ordinance or by-law shall . . . require a special permit
for the use of land for the primary purpose of commercial
agriculture . . ."); G. L. c. 40A, § 3, third par. ("No zoning
ordinance or by-law . . . shall . . . require a special permit
for . . . the use of land or structures, or the expansion of
existing structures, for the primary, accessory or incidental
purpose of operating a child care facility . . ."). A
municipality may, therefore, require a special permit for a
solar energy system, so long as the special permit requirements
are no more restrictive than those allowed by paragraph nine.
Cf. PLH LLC vs. Ware, Mass. Land Ct., No. 18 MISC 000648, slip
op. at 6, 8 (Dec. 24, 2019) (Piper, C.J.), aff'd, 102 Mass. App.
Ct. 1103 (2022).
d. The special permit requirements and the bylaw
provisions. In this case, the parties do not dispute that a
special permit requirement is permissible under paragraph nine.
They do, however, disagree about the extent of the board's
discretion to deny a special permit for a solar project under
14
the town's bylaw. The disagreement relates to which provisions
in the bylaw are applicable to the special permit inquiry.
The board's decision denying Sunpin's special permit
application cited three different provisions in the bylaw,
§§ 18, 11, and 1. As stated in § 18.1, the purpose of that
section is to "facilitate the creation of new large-scale solar
electric installations by providing standards" for their
construction and operation that, among other things, "minimize
impacts on the [town's] environmental, scenic, natural and
historic resources." Whereas § 18.1.a allows for "large-scale
ground-mounted solar electric installation[s]" as of right in
the town's SEOD, such facilities to be sited outside of this one
parcel require a special permit. Every large-scale groundmounted installation in the town must be "consistent with all
applicable local, [S]tate and [F]ederal requirements," meet
various other specifications relating to lighting, signage,
noise, and the like, and undergo site plan review.
Additionally, § 18.9.b states that "[c]learing of natural
vegetation [for large-scale ground-mounted installations] shall
be limited to what is necessary for the construction, operation
and maintenance of the installation or otherwise prescribed by
applicable laws, regulations, and bylaws."
15
Section 11.2 of the bylaw also describes the board's
discretion to grant special permits generally; it explains that
the board may grant a special permit if it has
"found that the use involved will not cause or give rise to
noise, odor, dust, refuse, exterior lighting, traffic or
other considerations which would be offensive or
detrimental to the present or future character of the
neighborhood or the community and if the [b]oard finds that
the proposed use will not derogate from the intent and
purpose of this By-law."
That intent and purpose is set forth in § 1 of the bylaw as
follows:
"The purpose of this By-law is to promote the health,
safety and general welfare of the inhabitants of Petersham;
to lessen the danger from fire; to maintain the beauty of
the [t]own; to secure the proper growth of the [t]own by
encouraging the most appropriate use of land and buildings;
and to stabilize the value of property; all as authorized
by [G. L. c. 40A] . . . ."
In the plaintiffs' view, the special permit process for
solar projects should resemble site plan review: in other
words, where a solar project complies with the solar-specific
provisions in a bylaw, which in this case are those required by
§ 18, the permit must be granted.
The board responds that by its text paragraph nine allows
for both reasonable regulation, including the regulations and
conditions provided by § 18, and more general regulations and
prohibitions "necessary to protect the public health, safety or
welfare," which are referenced elsewhere in the bylaw, including
§§ 1 and 11.2. See G. L. c. 40A, § 3, ninth par. In the
16
board's view, "[t]his represents at most a marginal tightening
of the standard that all zoning must meet under G. L. c. 40A,
§ 1A (the statutory definition of zoning): 'ordinances and bylaws, adopted by cities and towns to regulate the use of land,
buildings and structures to the full extent of the independent
constitutional powers of cities and towns to protect the health,
safety and general welfare of their present and future
inhabitants.'"
We conclude that the board's powers in regard to special
permits for solar energy systems are not limited to the sitespecific conditions that may be imposed pursuant to § 18, and
that the board may also deny a special permit for such a project
if the denial is "necessary to protect the public health, safety
or welfare" as provided in paragraph nine and a relevant bylaw
provision incorporating this standard. G. L. c. 40A, § 3. See
PLH LLC, No. 18 MISC 000648, slip op. at 7 ("[T]here is no good
support in the cases or in the court's experience for an
absolute legal requirement that a municipality -- which wishes
to regulate by special permit a [Dover Amendment] protected use
-- may do so only by the enactment of a particularly drafted
special permit bylaw provision which is focused just on [that]
specific [protected] use" [emphasis added]). The word
"necessary," however, must be understood according to its plain
meaning. Allen v. Boston Redev. Auth., 450 Mass. 242, 256
17
(2007) ("Where a statutory term is not defined, it must be
understood in accordance with its generally accepted plain
meaning").
Paragraph nine thus affords municipalities only a "narrow
ambit" within which they may properly deny a special permit for
solar energy system. PLH LLC, No. 18 MISC 000648, slip op. at
8. The requirement that the denial be "necessary to protect the
public health, safety or welfare" is not therefore just a
"marginal" tightening of the town's zoning powers, as the board
contends. "[N]ecessary to protect the public health, safety or
welfare," the standard imposed by paragraph nine, narrows the
scope of the town's bylaw, the purpose of which is "to promote
the health, safety and general welfare" of the town's
inhabitants. See G. L. c. 40A, § 3, ninth par. What is
"necessary to protect" is more restrictive than what may be
deemed to "promote." With this understanding of the statutory
requirements, we turn to the board's application of the bylaw in
the instant case.
e. The board's application of the standards and criteria.
The board properly applied § 18 and also permissibly considered
additional bylaw provisions, which incorporate the "necessary to
protect the public health, safety or welfare" standard from
paragraph nine. G. L. c. 40A, § 3, ninth par. See Shirley
Wayside Ltd. Partnership, 461 Mass. at 474, citing Britton, 59
18
Mass. App. Ct. at 73-74. The board did not, however, apply the
paragraph nine restrictions correctly. See Shirley Wayside Ltd.
Partnership, supra at 475.
Instead of deciding whether the denial of the permit here
was necessary to protect the public health, safety, or welfare,
the board determined that "significant tree cutting" or
"substantial destruction of natural resources without clear
community benefits" for the installation of solar energy systems
should be avoided "because it would not encourage the most
appropriate use of land." The board also speculated that the
approval of this special permit would facilitate "the usual,
unfortunate trajectory" of development and fragmentation of
natural lands.
Denying the special permit application if it requires any
deforestation5 or based on a conclusion that solar energy
facilities do not provide "clear community benefits" was
improper. The same is true for denying the permit based upon
hypothetical concerns about rampant future development. See
Britton, 59 Mass. App. Ct. at 75 (zoning board "may not deny a
permit simply by conjuring a parade of horribles, particularly
5 We note, as did the Appeals Court, that if the landowner were not attempting to permit a solar energy system, "nothing in the record or the bylaw suggests that a private property owner is restricted from cutting trees on his or her property." Sunpin Energy Servs., LLC, 105 Mass. App. Ct. at 648 n.12.
19
when it has the power to prevent them"). All of this
constitutes a misapplication of the "necessary to protect the
public health, safety or welfare" standard, which requires a
zoning board to undertake a site-specific analysis to make that
determination. See G. L. c. 40A, § 3, ninth par. See Sunpin
Energy Servs., LLC, 105 Mass. App. Ct. at 649 ("there has been
no showing that this particular parcel has unique
characteristics that render it unsuitable to house a solar
energy project -- aside from the fact that it is wooded").
Moreover, because the town is ninety-seven percent
forested, denying the application if it causes significant tree
cutting has the essential effect of creating a blanket
prohibition on large-scale ground-mounted solar systems in all
but three percent of the town. In Tracer Lane, 489 Mass. at
782, we likewise concluded that such an "outright ban" violates
paragraph nine. See Prime v. Zoning Bd. of Appeals of Norwell,
42 Mass. App. Ct. 796, 802-803 (1997) ("the special permit may
not be imposed unreasonably and in a manner designed to prohibit
the [protected use], nor may the permit be denied merely because
the board would prefer a different use of the locus, or no
use"); PLH LLC, No. 18 MISC 000648, slip op. at 6 (special
permit "cannot impose conditions that go beyond statutory limits
provided under § 3, [and] cannot be used either directly or
pretextually as a way to prohibit or ban the use"). As the
20
Appeals Court correctly recognized, "[w]ere [the board] to deny
a special permit for any large-scale solar electric installation
project that requires clearing trees, there would be no
distinction between the town's scheme and the one declared
unlawful in Tracer Lane" (citation omitted). Sunpin Energy
Servs., LLC, 105 Mass. App. Ct. at 649-650.
The Legislature has made clear in the Dover Amendment the
importance of solar energy systems to the Commonwealth as a
whole, and its concern that local municipalities should support
and not unduly interfere with the siting of such systems. See
G. L. c. 40A, § 3, ninth par.; Tracer Lane, 489 Mass. at 779
(paragraph nine "was enacted to help promote solar energy
generation throughout the Commonwealth"); PLH LLC, No. 18 MISC
000648, slip op. at 5 ("The purpose of the inclusion of solar
use in [the Dover Amendment] is clear: there is no doubt that
it is to be protective and encouraging of these kinds of uses").
To essentially prohibit the siting of large-scale solar systems
in a town that is ninety-seven percent forested based on
concerns about tree cutting is therefore unreasonable. See
Wendy's, 454 Mass. at 381-382. See also B. McKibben, Here Comes
the Sun 4, 145 (2025) (shifts toward solar energy generation
"could take a real bite out of the grim predictions of climate
scientists; the sun burns so we don't need to. . . . [To
achieve this, we] don't have to cover all, or most, or even much
21
of the landscape with solar panels. But we need to cover some
. . .").
f. The required site-specific analysis. We recognize that
paragraph nine's references to "health" and "welfare" embrace
the important documented benefits of forests -- each of which
affects residents' physical, emotional, or spiritual well-being.
See Opinion of the Justices, 333 Mass. 773, 778-779 (1955),
quoting Berman v. Parker, 348 U.S. 26, 33 (1954) ("[P]ublic
welfare . . . cannot be precisely defined. . . . 'The concept
of public welfare is broad and inclusive. . . . The values it
represents are spiritual as well as physical, aesthetic as well
as monetary. It is within the power of the [L]egislature to
determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as
carefully patrolled'"). But see Smith v. New England Aircraft
Co., 270 Mass. 511, 522-523 (1930) ("[The term 'public welfare']
should be defined with some strictness, so as not to include
everything that might be enacted on grounds of mere expediency"
[citation omitted]). Indeed, we have previously acknowledged
the myriad ways forested land can support health and welfare.
See New England Forestry Found., Inc. v. Assessors of Hawley,
468 Mass. 138, 149, 150-155 (2014) (forests serve "the public
good" by providing opportunities for recreation, meditation, and
education; dissipating stormwater runoff; filtering air and
22
water; and absorbing carbon and other harmful emissions).
Consequently, avoiding unnecessary deforestation is an
appropriate consideration for a board evaluating a special
permit application for a solar energy system.
Nevertheless, the special status and strong encouragement
of solar energy systems reflected in the Dover Amendment require
that the board consider the particular deforestation at issue --in other words, the deforestation required to construct a
particular project at a specific site -- to determine whether
its avoidance is necessary to protect public health, safety, or
welfare. That does not mean that preventing deforestation at a
particular site cannot be necessary for such protection given
the existence of other wooded areas or that the entire town must
be made available to be transformed into a solar energy parking
lot, as the board projected. Rather, when considering a permit,
a site-specific analysis is required, as is a more comprehensive
review of the town's over-all regulation in regard to the siting
of large-scale solar energy systems, in order to determine
whether the town has provided reasonable opportunities for these
sitings. See G. L. c. 40A, § 3, ninth par. (precluding
prohibition and allowing only reasonable regulation of solar
energy systems). See also Tracer Lane, 489 Mass. at 781 (town
23
cannot preclude solar energy systems "in all but one to two
percent of its land area").6
This dual analysis will inform whether the denial of the
special permit is necessary to protect the public health,
safety, or welfare at this particular location as provided by
paragraph nine or reflective of a general prohibition or
unreasonable regulation of solar energy systems that is
precluded by the rest of paragraph nine. Such analysis ensures
the application of the special permit requirement is "limited
and narrowly applied in a way that is not unreasonable, is not
designed or employed to prohibit the use or the operation of the
protected use, and exists where necessary to protect the health,
safety or welfare." PLH LLC, No. 18 MISC 000648, slip op. at 8.
For these reasons, we vacate the board's decision and order
that the case be remanded to the board for reconsideration in
light of this opinion. See Wendy's, 454 Mass. at 387-388 ("In
the ordinary course, a reviewing judge is reluctant to order a
board to implement particular relief," unless "remand is futile
or would postpone an inevitable result"). This is not "one of
the exceptional cases where a board can be ordered to grant a
special permit." Buccaneer Dev. Inc. v. Zoning Bd. of Appeals
6 For example, a town with limited green space that has provided for the siting of such large-scale solar energy systems elsewhere may have a more pronounced need to protect such limited green space.
24
of Lenox, 87 Mass. App. Ct. 871, 875 (2015), quoting Subaru of
New England, Inc. v. Board of Appeals of Canton, 8 Mass. App.
Ct. 483, 488 (1979). See McLaughlin v. Zoning Bd. of Appeals of
Duxbury, 102 Mass. App. Ct. 802, 815 (2023) ("order directing
issuance of a permit is exceedingly rare"). Rather, the board
should apply the site-specific analysis required here, including
whether avoiding deforestation at this particular site is
necessary to protect the public health, safety, or welfare, and
if so, how this site differs from others in the town where large
solar energy systems may be sited. See G. L. c. 40A, § 3, ninth
par. See also McLaughlin, supra ("because the board denied the
special permit based on an incorrect interpretation of the
zoning bylaws . . . a remand is necessary to afford the board an
opportunity" to apply permissible considerations).7
Finally, we note that in the time since the board's 2021
7
denial of Sunpin's special permit application, the Legislature enacted "An Act promoting a clean energy grid, advancing equity and protecting ratepayers" (2024 Climate Act), St. 2024, c. 239, §§ 5, 23, codified at G. L. c. 21A, § 30, and G. L. c. 25A, § 21. The 2024 Climate Act directs the Department of Energy Resources (DOER) to, among other things, promulgate standards for siting and permitting of solar energy projects to evaluate the social and environmental impacts of ground-mounted solar installations, which DOER did earlier this year. See G. L. c. 25A, § 21 (b); 225 Code Mass. Regs. §§ 29.01-29.16 (2026). It also provides that "[l]ocal governments acting in accordance with [such] standards . . . shall be considered to have acted consistent with the limitations on [solar energy system] zoning under [paragraph nine of the Dover Amendment]"). G. L. c. 25A, § 21 (b). See Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 250-251 (2010) ("[T]he right to a permit vests at the time the applicant is unconditionally entitled to
25
3. Conclusion. For the foregoing reasons, the board's
denial of the special permit application was improper under
G. L. c. 40A, § 3, ninth par. Accordingly, we vacate the
judgment of the Land Court and remand the matter to that court
for entry of an order remanding the matter to the board for
further proceedings consistent with this opinion.
So ordered.
its issuance. Until that time, . . . the applicant is subject to any changes in zoning provisions that are properly noticed before the permit issues").